C-224/01

II — Facts and main proceedings I -10246

III — The questions referred for a preliminary ruling I -10248

IV — The subject-matter of the questions referred for a preliminary ruling I -10249

V — The principle of State liability for breach of Community law by a supreme court . I -10249

A — The observations of the parties I - 10249

B — Analysis I-10251

(a)The independence of the judiciary I -10268

1 — Original language: French.

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(b) The parallel between the rules governing Member State liability and those governing Community liability I -10269 (c) Respect for res judicata I -10270 (d) Guarantees of the national courts' impartiality I-10273 VI — The substantive conditions determining imposition of State liability for breach of Community law by a supreme court I -10274 A — Observations of the parties I -10275 B — Analysis I-10275 1. The nature of the rule infringed I -10276 2. The nature of the breach of Community law I -10277 3. The direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties I-10283 VII— The determination of the court or tribunal with jurisdiction to assess the merits of the action for damages I-10284 A — Determination of the competent national court or tribunal I-10284 B — The respective roles of the Court of Justice and national courts in assessing the merits of the action for damages I -10285 VIII — The present case I - 10285 IX — Conclusion I - 10288

1. Can a Member State be rendered liable Court, Vienna) (Austria) has referred to the for breach of Community law where that Court in these proceedings. 2For the first breach is committed by a supreme court? Is time, the Court is requested to clarify the the Member State in question required to scope of the principle that a State is liable compensate individuals for the resulting for loss or damage caused to individuals by loss or damage? If so, what are the con- breaches of Community law attributable to ditions which give rise to such liability? the State. That principle was established by the Court in Francovich and Others 3and has been considerably developed since Brasserie du pêcheur and Factortame 4in

4. In Austrian law, the principle of Slate liability is enshrined in the Federal Con- 3. It is interesting to note that, in parallel, stitution 7 and defined by the Federal Law the Court is seised of an action for failure of 18 December 1948. 8 Paragraph 2 of thai- to fulfil obligations in Case C-129/00 law provides: Commission v Italy, 5which particularly calls in question a dominant line of cases decided in the national courts, specifically the Corte suprema di cassazione (Supreme Court of Cassation) (Italy). That case '(1) It is not necessary to designate a requires the Court to consider issues anal- specific body upon an application for ogous to those raised in these proceedings: damages; it is sufficient to establish that must a Member State be answerable for the the loss or damage could have been caused acts adopted by its courts (or by some of only by breach of the law by a person them) and, if so, to what extent? In acting on behalf of the defendant. addition, the Court is also seised of a request from the Netherlands for a pre- liminary ruling 6 on whether a national administrative body is required, under Community law, to reopen one of its decisions which has been confirmed by a (2) There shall be no right to redress where final judicial decision, where the interpre- the injured party could have avoided the tation of the relevant Community legis- loss or damage by means of a legal remedy, lation on which that administrative in particular an appeal to the Verwaltungs- decision was based is belied by the Court gerichtshof [Austria 9]. in a subsequent preliminary ruling. That question referred for a preliminary ruling is worth mentioning although the issues are 7 — Article 23 (1) of the Federal Constitution provides that the Federation, the Lander, the districts, the commumes and the relatively different from those which con- other public-law authorities and bodies shall be liable for cern us in the present case. I shall soon be the loss or damage which persons acting on their behalf in execution of the laws have by culpable and unlawful delivering my Opinion in that case. conduct inflicted on whatever person'. 8 — Federal Law governing the liability of the Federation, the Lander, the districts, the communes and the other public- law authorities and bodies for loss or damage resulting from the execution of the laws (BGBl., 1949/20). 5 — A case pending before the Court, which concerns the 9 — That court, entitled 'Administrative Court', is the only court arrangements for reimbursement of national taxes which with jurisdiction in administrative matters. It intervenes were levied unlawfully, because they were in breach of following an internal administrative review. Its decisions are Community law judgment of 9 December 2003, not yet nor subject to appeal. Although it is not superior to any published in the ECR. other court in the field within its jurisdiction, it plays the 6 — Case C-453/00 Kühne & Heitz, judgment of 13 January role of a supreme court (hereinafter otherwise known as 'the 2003, not published in the ECR.. supreme administrative court').

6. Moreover, disputes concerning State liability come within the inherent jurisdic- 8. Mr Köbler has been employed since tion of the courts of first instance in civil 1 March 1986 under a public-law contract and commercial matters (Landesgericht with the Austrian State in the capacity of (regional court) (Austria), Handelsgericht ordinary university professor in Innsbruck Wien (commercial court, Vienna) (Aus- (Austria). By letter of 28 February 1996 to tria)). the competent administrative authority, he applied for the special length-of-service increment for university professors. In sup- port of his application, he relied on com- pletion of 15 years' service as an ordinary professor at universities in various Member States of the European Community, in particular Austria. That application was B — The special length-of-service incre- rejected on the ground that Mr Kobler did ment for university professors not fulfil the length-of-service conditions under Paragraph 50a of the 1956 salary law, namely completion of the required service exclusively at Austrian universities. 7. Paragraph 50a of the 1956 Gehaltsgesetz (salary law), 1 2 a s amended i n 2001 , 13 provides that a university professor is

10 — This is the constitutional court. 9. Mr Kobler thus appealed against that 11 — This is the supreme court in civil and commercial, social security, employment law and criminal law matters. decision to the Verwaltungsgerichtshof. He Within that court system, it is superior to other courts of claimed that the length-of-service con- first or second instance. 12 — BGBl., 1956/54. ditions imposed by that law for eligibility 13 — BGBl. I, 2001/34. for the increment at issue amount to indi- I - 10246

10. In the light of such an argument, the supreme administrative court referred a question to the Court for a preliminary ruling in order to ascertain whether Article 48 of the Treaty and Articles 1 to 3 of Regulation No 1612/68 are to be 12. On 2 January 2001, Mr Köbler interpreted as meaning that, under a pay brought an action for damages against the scheme which provides that salary is Republic of Austria before the Landesger- dependent, inter alia, on length of service, icht für Zivilrechtssachen Wien. 17 He sub- activities of equal value previously under- mits that the judgment of 24 June 1998 of taken in another Member State must be the supreme administrative court infringed treated in the same way as activities directly applicable provisions of Commu- previously undertaken in the country under nity law. In his submission, the Court's consideration. 15 case-law does not treat the increment at issue in the same way as a loyalty bonus. As a consequence, he seeks compensation for the loss which he has unlawfully sustained as a result of the judicial decision in question which refused to grant the special 11. By letter of 11 March 1998, the Court length-of-service increment which he is asked the supreme administrative court entitled to claim under Community law. whether it deemed it necessary to maintain The Republic of Austria opposes that its question submitted for a preliminary application for compensation on the ruling in the light of the judgment of ground that the judgment of the supreme 15 January 1998 in Schöning-Kotigebe- administrative court is not contrary to topoulou, 16 which had been delivered in Community law and that, in any event, a the meantime. The national court requested decision of a supreme court (such as the the parties to give their views on the matter, Verwaltungsgerichtshof) cannot give rise to since at first sight the legal issue which was State liability. It states that such liability is the subject-matter of the question sub- expressly excluded under Austrian law, a mitted for a preliminary ruling had been provision which is not contrary, in its resolved by that judgment of the Court in a submission, to the requirements of Com- munity law. 14 — OJ, English Special Edition 1968 (II), p. 475. 15 — See the order for reference [in Case C-382/97 Köbler]. 16 — Case C-15/96 Schöning-Kougebetopoulou [1998] ECR 17 — This is a court of first instance in civil and commercial I-47. matters.

Is the case-law of the Court of Justice according to which it is for the legal system of each Member State to deter- Is this rule of directly applicable Com- mine which court or tribunal has munity law such as to create a sub- jurisdiction to hear disputes involving jective right for the applicant in the individual rights derived from Commu- main proceedings? I - 10248

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(5) If the answer to Question 4 is yes: present case, those substantive conditions are fulfilled. 21

Does the Court... have sufficient infor- 15. It is important to emphasise that all mation in the content of the order for those questions concern exclusively reference to enable it to rule itself as to supreme courts and not ordinary courts. whether the Verwaltungsgerichtshof in As a consequence, I will restrict my analysis the circumstances of the main proceed- to the position of supreme courts and will ings described has clearly and signifi- not consider that of ordinary courts. cantly exceeded the discretion available to it, or is it for the referring Austrian court to answer that question?'

16. It is appropriate to examine first of all the question of principle. The answer to that question will determine whether it is necessary to examine the subsequent ques- tions.

IV — The subject-matter of the questions referred for a preliminary ruling

breach. It is not relevant whether this organ 20. According to the French Government, is part of the legislature, executive or by the judgment in Brasserie du pêcheur judiciary. Moreover, the liability of the and Factortame the Court neither expressly State for its judicial activities cannot be nor impliedly included judicial organs limited to the ordinary courts, to the amongst the organs which may render the exclusion of supreme courts, because that State liable for breach of Community law. would enable Member States to organise The fundamental principle of respect for res their judicial systems in such a way as to judicata precludes the establishment of a avoid all liability and would thus run the mechanism which renders the State liable in risk of leading to national situations which respect of the content of a supreme court's were divergent in respect of the judicial decision. That principle should prevail over protection of individuals. the right to redress. Furthermore, the system of legal remedies established in the Member States, which is supplemented by the mechanism of references for a prelimi- nary ruling under Article 234 EC, offers individuals a sufficient safeguard against the risk of an error of interpretation of 18. According to both the Republic of Community law. In the alternative, the Austria and the Austrian Government, French Government stated at the hearing Community law cannot preclude the exist- that State liability for the acts or omissions ence of legislation expressly excluding the of supreme courts should be subject to liability of the State for breach of law — special rules which are particularly restrict- including Community law — by its ive and radically different from the rules supreme courts. Such legislation does not governing State liability for legislative or make the implementation of Community administrative acts, having regard to the law impossible or excessively difficult so specific nature of the conditions under long as parties are able to rely on Commu- which the judicial function is exercised. nity law before the supreme courts. It is justified by requirements of legal certainty relating to the need to bring disputes to a final conclusion. Furthermore, the estab- lishment of a principle that the State is liable for the acts or omissions of its supreme courts presupposes that the Com- 21. According to the United Kingdom munity can also be rendered liable for the Government, it is clear from Brasserie du acts or omissions of the Court of Justice, pêcheur and Factortame that the Court which is difficult to envisage since the seemed prepared to countenance the possi- Court would become both judge and party bility of the State incurring liability for to the proceedings. judicial acts. However, the imposition on the State of liability for acts or omissions of its judicial organs can be envisaged only very restrictively. That restrained approach is all the more necessary in the light of the Court's case-law on the Community's non- contractual liability for the failure of the 19. That view is broadly shared by the Court of First Instance to satisfy the French and United Kingdom Governments. requirements of a fair hearing within a

25. I take the view that this question should be answered in the affirmative. 22 That reply is based on three series of

23. According to the Commission of the 22 — I have already briefly expressed my view to that effect in my Opinion in Case C-5/94 Hadley Lomas [1996] ECR European Communities, the principle of I-2553, point 114.

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arguments relating to, first, the broad scope courts the rights conferred on them by that given by the Court to the principle of State directive. 23 In spite of the specific nature of liability for breach of Community law, the situation in question, which was par- second, the decisive role of the national ticularly ' p a t h o l o g i c a l ' , the Court court in the implementation of Community expressed itself in very general terms: 'it is law, in particular where it is acting as a a principle of Community law that the supreme court, and, third, the situation Member States are obliged to make good obtaining in the Member States, in par- loss and damage caused to individuals by ticular in the light of the requirements for breaches of Community law for which they protection of fundamental rights. can be held responsible'. 24 N o details were given about the State organ responsible for the loss or damage.

23 — Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the (i) Francovich and Others insolvency of their employer (OJ 1980 L 283, p. 23). 24 — Paragraph 37. 25 — Ibidem, paragraph 35. That phrase has been repeated verbatim by the Court in, inter alia, Brasserie du pêcheur and Factortame, paragraph 31; Case C-392/93 British Telecommunications [1996] ECR I-1631, paragraph 38; Healey Lomas, paragraph 24; Joined Cases C-178/94, C-179/94, C-188/94 to C-190/94 Dillenkofer and Others 27. The principle of State liability was [1996] ECR I-4845, paragraph 20; Joined Cases C-283/94, established by the Court in Francovich C-291/94 and C-292/94 Denkavit and Others [1996] ECR I-5063, paragraph 47; Case C-127/95 Norbrook Labora- and Others in a particular situation distin- tories [1998] ECR I-1531, paragraph 106; Case C-319/96 Brinkmann [1998] ECR I-5255, paragraph 24; Case guished by failure to transpose a directive C-424/97 Haim [2000] ECR I-5123, paragraph 26; Case C-150/99 Stockholm Lindbpark [2001] ECR I-493, para- without direct effect, which prevents indi- graph 36, and Case C-118/00 Larsy [2001] ECR I-5063, viduals from invoking before the national paragraph 34.

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29. The Court recalls that 'the EEC Treaty munity law for which a Member State can has created its own legal system, which is be held responsible.' 28 integrated into the legal systems of the Member States and which their courts are bound to apply. The subjects of that legal system are not only the Member States but also their nationals. Just as it imposes burdens on individuals, Community law is 32. Secondarily, the Court states that, also intended to give rise to rights which under Article 5 of the EC Treaty (now become part of their legal patrimony. Article 10 EC), the Member States are Those rights arise not only where they are required to nullify the unlawful con- expressly granted by the Treaty but also by sequences of a breach of Community virtue of obligations which the Treaty law. 29 imposes in a clearly defined manner both on individuals and on the Member States and the Community institutions'. 26

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two principles, the obligation on the State supreme court renders a decision contrary to make good the loss or damage caused to to Community law, for individuals to be in individuals by breach of Community law a position to obtain redress, at least where helps to ensure the full effectiveness of certain conditions are fulfilled. Community law through effective judicial protection of the rights which individuals derive from the Community legal order. Indeed, the principle of State liability con- stitutes the necessary extension of the general principle of effective judicial pro- tection or of the 'right to challenge a measure before the courts', whose import- ance has been regularly underlined by the Court and whose scope has been constantly 38. Where there is no possibility of an extended through its case-law. appeal against a decision of a supreme court, an action for damages alone serves — in the final analysis — to ensure that the right infringed is restored and, finally, to ensure that the effective judicial protection of the rights which individuals derive from Community law is of an appropriate level. 31

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40. As a consequence, I am of the opinion the basis of the need for Community law to that the principle of State liability for be uniformly applied and on the useful breach of Community law must be comparison with State responsibility in extended to the situation where that breach international law. is committed by a supreme court. That conclusion is all the more inevitable in the light of Brasserie du pêcheur and Factor- tame.

(ii) Brasserie du pêcheur and Factortame 43. As regards the uniform application of Community law, the Court has held that 'in view of the fundamental requirement of the Community legal order that Community 41. In Brasserie du pêcheur and Factor- law be uniformly applied..., the obligation tame, the Court deduced from its decision to make good damage caused to individuals in Francovich and Others that the principle by breaches of Community law cannot of State liability — since it is inherent in depend on domestic rules as to the division the system of the Treaty — holds good for of powers between constitutional auth- any breach of Community law, whatever orities'. 34 In my view, that fundamental be the organ of the State whose act or requirement of the Community legal order omission was responsible for the breach. 33 is imposed on judicial authorities with the same force as on parliamentary authorities. The guarantee of compliance with Com- munity law — in which the mechanism of State liability plays a large part 35 — cannot vary at the will of the Member States, according to the domestic rules on 42. By that statement, the Court is no the division of powers between constitu- longer acting on the basis only of the tional authorities or those on the powers of system of the Treaty. It is also acting on State institutions and the conditions for the exercise of such powers.

44. As to State responsibility in inter- a person recognised as having rights and national law, the Court has held that, 'in duties in international law, to the exclusion international law a State whose liability for of its organs. On that basis, only the State breach of an international commitment is can be rendered liable. 38 That principle is in issue will be viewed as a single entity, not unknown to Community law 39 or irrespective of whether the breach which indeed to national law. 40 As I stated in gave rise to the damage is attributable to my Opinion in Hedley Lomas, '[Commu- the legislature, the judiciary or the execu- nity law] sees only one liable party (the tive'. 36 The Court held further that this State), just as, in proceedings for failure to must apply a fortiori in the Community fulfil Treaty obligations, it sees only one legal order since a major interest is taken in defendant (the State)'. 41 It follows that '[i]t the legal situation of individuals. 37 is not a specific organ of the State but rather the Member State qua State which must provide compensation'. 42

45. In doing so, as the French Government submitted, the Court intended to refer to the principle of State unity. It is now important to draw from that all the appro- priate conclusions in respect of State liabil- ity for the acts or omissions of a supreme 47. In the second place, the rule of State court. It is commonly accepted in inter- unity means that the State is liable for the national law that that principle, which is loss or damage which it causes by any act customary in nature, has a double meaning. or omission contrary to its international obligations, whichever State authority is responsible for it. That principle is clearly set out in Article 4(1) of the draft articles on the responsibility of States, which were drawn up by the International Law Com- mission and approved, on 28 January 2002, by a resolution of the General

49. The system established by the Euro- pean Convention for the Protection of Human Rights and Fundamental Freedoms ('the ECHR') brings an interesting light to bear on the issue of State liability for the acts or omissions of a supreme court. Before the European Court of Human Rights, individuals may directly put in issue State liability for the acts or omissions of a 48. On that subject, it is interesting to note national court, on the basis of failure to that the international responsibility of a fulfil the requirements of a fair hearing — State has already been acknowledged — in procedendo —, but also on the basis of relatively early — in cases where the con- breach of a substantive rule — ni indi- tent of a definitive judicial decision cando — such as adversely to affect the infringed the international obligations of very content of the judicial decision.48 By the State in question. 46 Such cases are means of such proceedings, individuals may regarded, under international law, as a be eligible for compensation in the form of denial of justice, that is, a breach of the 'just satisfaction'.

As regards freedom of contract for a coal-mining concession granted by the expression, sec, inter alia, the judgment of the European Republic of Venezuela to an Italian undertaking. The Court of Human Rights of 26 April 1979 Sunday Tunes v Venezuelan State was held liable by reason of a decision of United Kingdom in respect of a House of Lords decision the Federal Court of Cassation (Venezuela) which was held which, by applying the concept of contempt of court, to be partially incompatible with an international arbitral prohibited the publication of newspaper articles about a award made in accordance with an international agree- medicinal product during the course of the proceedings to ment to which that State was a party. which that product had given rise (Series A N o 30).

50. Those explanations about State unity in international law are well known in Com- munity law. It is in that context that we can place the principle, referred to in paragraph 34 of Brasserie du pêcheur and Factortame, that 'in the Community legal order... all State authorities, including the legislature, are bound in performing their tasks to comply with the rules laid down by Com- 52. In any event, even if that reading of munity law'. It is on the basis of that Brasserie du pêcheur and Factortame is not principle that the Court stated, in para- adopted, I do not see how the Court could graph 35 of that judgment, that '[t]he fact rule otherwise than in favour of State that, according to national rules, the breach liability for acts or omissions of a supreme complained of is attributable to the legis- court. In addition to the fact that it would lature cannot affect the requirements fit harmoniously into the extension of the inherent in the protection of the rights of Court's case-law which has just been individuals who rely on Community law broadly outlined, the acknowledgement of and, in this instance, the right to obtain such liability seems to be the corollary of redress in the national courts for damage the mission — of the utmost import- caused by that breach'. ance — conferred on the supreme courts in the direct, immediate and effective pro- tection of the rights which individuals derive from Community law. The situation which obtains in the Member States, in particular in the light of the requirements of protection of fundamental rights, also points in that direction. 51. It follows from all these arguments that, by the judgment in Brasserie du pêcheur and Factortame, the Court did 50 — See, also, to that effect, A. Barav, 'Responsabilité et irresponsabilité de l'État en cas de méconnaissance du droit communautaire', Liber Amicorum Jean Waline, p. 435; D. Simon, 'La responsabilité de l'État saisie par e droit communautaire', AJDA, July-August 1996, p. 494, 49 — See, on that point, L.-E. Pettiti, E. Decaux and P.-H. and L. Dubouis, 'La responsabilité de l'État législateur Imbert, Commentaire article par article de la convention pour les dommages causés aux particuliers par la violation européenne des droits de l'homme, Economica, 2nd ed., du droit communautaire et son incidence sur la respons- 1999, p. 462. abilité de la Communauté', RFDA, May-June 1996, p. 585.

54. The function of the national court involves a dual obligation: to interpret, as far as possible, its national law in accord- ance with Community law and, where that is not possible, to disapply the national law 53. Established by law, the European Com- which is contrary to Community law. 54 munities have been developed and consoli- dated essentially through law. Since the national courts have the function of apply- ing the law, including Community law, they inevitably constitute an essential cog in the Community legal order. At the 'crossroads' of a number of legal systems, 55. As regards the obligation of interpre- their role is to make an important con- tation in conformity with Community law, tribution to the effective application of it has been established by the Court both in Community law and, eventually, to the respect of primary Community law (the development of the process of European Treaty provisions) 55 and secondary Com- integration. Accordingly, we can under- munity law (in particular directives). In stand why the Court has always, through- that regard, the Court has held that the out its case-law, underlined the decisive Member States' obligation under a direc- role of the national courts in the imple- tive to achieve the result envisaged by the mentation of Community law. We can also directive and their duty under Article 5 of detect the progressive development of a real the Treaty to take all appropriate measures, 'Community judicial ethic'. 51 As A. Barav whether general or particular, to ensure has noted, 'both the primacy of Commu- fulfilment of that obligation are binding on nity law and its direct effect constitute, all the authorities of the Member States, above all, instructions to the national including, for matters within their jurisdic- courts'. 52 By virtue of those two prin- tion, the courts. It has concluded that, 'in ciples, 53 a national court is required to play applying domestic law [whether its provi- the role of both judge in a conflict of — sions predate or arc subsequent to the directive] the national court called upon to interpret that law is required to do so, as 51 — That expression was employed by F. Grêvisse and J.-C. far as possible, in the light of the wording Bonichot in 'Les incidences du droit communautaire sur l'organisation et l'exercicede la fonction juridictionnelle dans les États membres', L'Europe et le droit, Mélanges en hommage à Jean Doulouis, Dalloz, 1991, p. 297 et seq. 54 — 1 will not refer to the role of the national court in respect of 52 — A. Barav, 'La plénitude de compétence du juge national en the assessment of the validity of a measure of secondary sa qualité de juge communautaire', L'Europe et le droit, Community law. I will concentrate on the situation at issue Mélanges en hommage à Jean Boulouis, Dalloz, 1991, p. 1 in the main proceedings, namely the application by the et seq. national court of its national law which is alleged to be 53 — These two fundamental principles of the Conimuniry legal contrary to Community law. order were established by the Court m the famous cases of 55 — Sec, i n particular. Case 157/86 Murphy and Others [1988] Van Gend & Loos and Costa. ECR 673, paragraph 11.

57. As regards the obligation to disapply national law which is contrary to Commu-

59. In that regard, it has been pointed out 56 — See, in particular, Case 14/83 Von Colson and Kamann that, although the national court, like any [1984] ECR 1891, paragraph 26; Case C-106/89 Marleas- ing [1990] ECR I-4135, paragraph 8; Case C-91/92 Faccini organ of a Member State, is required to Dori [1994] ECR I-3325, paragraph 26; Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 41, and Case apply Community law, its mission is 'all the C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 24. 5 7 — Case C-334/92 Wagner Miret [1993] ECR I-6911, para- graph 21. 59 — Paragraph 24 in conjunction with paragraph 16. Some 58 — Arcarot paragraph 42, referring to Case 80/86 Kolpinghnis indications to that effect could already be seen in Case Nijmegen [1987] ECR 3969, paragraphs 13 and 14. 13/68 Salgoil [1968] ECR 453.

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If he takes the view that his national law cannot be interpreted in conformity with Commu- nity law, he is required to disapply it and even to apply provisions of Community law in place of his national law by means of a 61. As an extension of Simmenthal, the substitution of norms, unless that — Court held in Factortame and Others 62 also — results in an aggravation of the that the national court must set aside any legal position of individuals. 61 obstacle of national law which precludes it from granting, if necessary, interim relief designed to protect rights which individuals claim to derive from Community law.

13. The Court has stated that this case-law seeks to prevent the Court entrusts the national judge with a a Member State from taking advantage of its own failure to comply with Community law. See Faccini Dori, paragraph 22; Case C-192/94 El Corte Ingles [1996] ECR I-1281, paragraph 16, and Arcaro, paragraphs 36 and 42. 62 — Paragraph 23.

65. Finally, it should be borne in mind that, in certain cases, the national courts are

64 — This mechanism of a court injunction to the administrative authorities was far from being recognised in a number of 63. That case-law represents an important Member States on account or the traditional principle of step forward in the definition of the the separation of powers. 65 — The Court has stated that, '[i]f the result prescribed by the function of national courts. Not only are directive cannot be achieved by way of interpretation,... in they required to sidestep provisions of their terms of the judgment in... Francovich and Others, Community law requires the Member States to make good domestic law — which are contrary to damage caused to individuals through failure to transpose a directive'. See, in particular, Faccini Dori, paragraph 27, and El Corte Inglés, paragraph 22. Those judgments were given in cases where a directive could not have direct effect because of the absence of horizontal direct effect (that is, in 63 — Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12. relations between individuals).

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66. It can easily be inferred from all this Human Rights and Fundamental Free- case-law that the Court confers on the doms'. 68 national courts an essential role in the implementation of Community law and in the protection of the rights derived from it for individuals. Indeed people like to call the national courts, according to an expression commonly employed, 'Commu- nity courts of ordinary jurisdiction'. That expression must not be understood lit- erally, but symbolically: where a national 68. That concept of a 'right to challenge a court is called upon to apply Community measure before the courts' is the corollary law, it is in its capacity as an organ of a of the rule of law.

It was created and within its jurisdiction, from considering of its own motion whether a measure of domestic law is compatible with a works on the understanding that all provision of Community law when the latter provision has not been invoked by the litigant within a certain period. See Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 21. Furthermore, the Court has held that where, by virtue of domestic law, courts or tribunals must 68 — Case 222/84 Johnston [1986] ECR 1651, paragraph 18. raise of their own motion points of law based on binding The fundamental nature of such a principle has been domestic rules which have not been raised by the parties, recalled on a number of occasions. See, inter alia, Case such an obligation also exists where binding Community C-97/91 Oleificio Borelli v Commission [1992] ECR rules are concerned. It stated further that the same is true I-6313, paragraph 14; Case C-1/99 Kofisa Italia [2001] where domestic law confers on courts and tribunals a mere ECR I-207, paragraph 46; Case C-226/99 Siples [2001] discretion — and not an obligation — to apply of their ECR I-277, paragraph 17; Case C-424/99 Commission v own motion binding rules of law. See Joined Cases Austria [2001] ECR I-9285, paragraph 45, and Case C-430/93 and C-431/93 Van Schijndel and Van Veen C-50/00 P Unión de Pequeños Agricultores v Council [1995] ECR I-4705, paragraphs 13 and 14. [2002] ECR I-6677, paragraph 39. 61 — Simmenthal, paragraph 16. 69 — Point 3.

72. In accordance with their traditional functions of ensuring that the law is uniformly interpreted, the supreme courts 70. I take the view that equal respect by the are responsible for ensuring that the other Member States for the Community legal national courts apply Community law cor- order, in accordance with the requirements rectly and effectively. To that end, it is of a Community based on the rule of law, incumbent upon them to pay very particu- formed of States based on the rule of law, lar attention to the conformity of domestic means that the Member States are to be law with Community law and to draw all held liable for breaches of Community law, necessary conclusions. irrespective of whether the organ respon- sible was the legislature, the executive or the judiciary. It is impossible to see how a Member State could prima facie escape all liability for the acts or omissions of its supreme courts when, specifically, those courts are responsible for applying and 73. Moreover, experience shows that the ensuring compliance with Community law. supreme courts are regularly faced with That would amount to an insuperable situations which justify such analysis and paradox. It follows that, although the are thus required to interpret national provisions in conformity with Community law, and even to disapply those provisions 70 — Idem. by reason of their incompatibility or their 71 — See J. Rideau, Le droit au juge dans l'Union européenne, inconsistency with Community law. The LGDJ, Paris, 1998, and, more specifically, F. Picod, 'Le droit au juge en droit communautaire', pp. 141 to 170. Court's case-law on the legal issue con- I - 10264

72 — This is what is shown, in particular, by the case-law of the Cour de cassation (Court of Cassation) (France) on the maintenance of employment contracts when the legal situation of the employer is modified. The provisions to that effect in Article L. 122-12 of the Code du travail (Employment Code) have been interpreted by the Cour de cassation, by dint of a reversal of precedent, in an extensive 75. The importance of the obligation to manner which is consistent with the interpretation by the Court of Council Directive 77/187/EEC of 14 February make a reference, imposed by Article 234 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in EC, was forcefully pointed out by the the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 6 1 , p. 26). See the judgment of Court in CILFIT and Others. 75 The estab- the Cour de cassation of 16 March 1990 (Bull. civ.

We can also cite the example of the case-law of the Bundes- questions of Community law. 76 It is the gerichtshof (Federal Court of Justice) (Germany) on the supreme courts which are responsible for right to rescind doorstep contracts. The provisions to that effect in German law have been interpreted extensively in referring questions for a preliminary ruling accordance with the interpretation by the Court of Council Directive 85/577/EEC of 20 December 1985 to protect the in order to prevent the extension or occur- consumer in respect of contracts negotiated away from rence of divergences in judicial decisions business premises (OJ 1985 L 732, p. 31).

européenne, Brussels, 2002, p. 153. 76 — Ibidem, paragraph 7.

77. To my understanding, all the Member States accept the principle of State liability for judicial acts. All — except for the moment Ireland 7 7 — accept that principle in respect of judgments themselves where they infringe legal rules applicable in their territory, in particular where there is a 81. As regards the source of the judgment, breach of fundamental rights. only the Republic of Austria and the Kingdom of Sweden limit State liability to the decisions of ordinary courts, excluding those of supreme courts. The Swedish legislation excluding State liability for the acts or omissions of supreme courts seems 78. However, the scope of that principle to have been the result of the absence of an varies according to the nature of the legal appropriate national court or tribunal to rule infringed and/or the source of the judgment. 78 — The Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Kingdom of Spain, the Italian Republic, the Grand Duchy or Luxembourg, the 77 — Pending the enactment of a bill (European Convention on Republic of Austria, the Republic of Finland and the Human Rights Bill, 2001). Kingdom of Sweden.

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84. Lastly, it is interesting to note that, in Italy, this principle of liability, laid down in legislation, has been recently applied by decision of the Tribunale di Roma (District Court, Rome) (Italy) of 28 June 2001 to a 83. That acknowledgement is found not case in which the Corte suprema di cassa- only in written rules (whether xonstitu- zione had acted in breach of Community tional or legislative), but also in case-law. It law. 80 is interesting to note that the Kingdom of Belgium is the only Member State which has acknowledged, in its case-law, the general principle of the liability of the State for the actions of its courts. That principle was laid down by a judgment of the Cour de cassation (Belgium) of 19 December 85. It follows from this comparative legal 1991, De Keyser, 79 in proceedings between analysis that the principle of State liability an individual and the Belgian State as a for the acts or omissions of supreme courts result of a judgment which had become res can be acknowledged as a general principle judicata, on the ground that that judgment of Community law. It is settled case-law declared the automatic bankruptcy of a that, in order to acknowledge the existence company, in breach of the principles requi- of a general principle of law, the Court ring a fair and public hearing. That does not require that the rule be a feature of all the national legal systems. Similarly, the fact that the scope and the conditions of 79 — Journal des tribunaux, 1991, p. 141. See, also, the application of the rule vary from one interesting Opinion of Advocate General Velu in that case (journal des tribunaux, 1992, pp. 142 to 152) and the commentaries on that judgment in European legal writings (in particular in European Review of Private Law 2, 1994, pp. 111 to 140). 80 — Giurisprudenza di merito, 2002, p. 360.

86. It follows from all these arguments about the scope of the principle of State liability, the role of the national courts and the state of the domestic law of the Member States that Community law imposes on those States an obligation to (a) The independence of the judiciary make reparation for breach of Community law by a supreme court. That conclusion cannot be undermined by the supposed obstacles raised by some of the parties to the present proceedings. 88. It should be recalled that the argument based on the independence of the judiciary is irrelevant in Community law, as in international law. As we know, under international law, a State cannot rely on the particular characteristics of its consti- tutional organisation in order to escape liability. That situation is only a particular 2. The obstacles raised by some of the expression of the general principle that '[a] parties to the present proceedings are not party may not invoke the provisions of its such as to preclude State liability for breach internal law as justification for its failure to of Community law by a supreme court perform a treaty'. 82 It follows that 'the conduct of an organ of a State — even an organ independent of the executive power — must be regarded as an act of that State'. 83 87. A number of obstacles have been put forward by the Republic of Austria and the Austrian, French and United Kingdom 82 — See Article 27 of the Vienna Convention on the Law of Treaties 1969. Governments. These obstacles relate to 83 — See the advisory opinion of the International Court of Justice of 29 April 1999 relating to a difference between the United Nations Organisation and the Malaysian State further to failure by the authorities of that State, in particular the judicial authorities, to observe the immunity 81 — See, on that subject, my Opinion in Case C-87/01 P from legal process of a person entitled to claim it on the Commission v CEMR, pending before the Court, points 51 basis of the 1946 Convention on the Privileges and to 53. Immunities of the United Nations (paragraph 63).

90. Moreover, it might be asked whether the question of the independence of the 92. It is true that the definition of the judiciary should not be raised more in the substantive conditions governing the sys- context of the establishment of rules gov- tem of rules on Member State liability is not without effect on those governing Community liability. In that regard, the 84 — See, in particular, Case 52/75 Commission v Italy [1976[ ECR 277, paragraph 14; Case 390/85 Commission v Court's case-law has been responsible for Belgium [1987] ECR 761, paragraph 7; Case 9/86 Com- mission v Belgium [1987] ECR 1331, paragraph 5; and, aligning those conditions, as illustrated in more recently, Case C-276/98 Commission v Portugal particular by Brasserie du pêcheur and [20011 ECR I-1699, paragraph 20, and Case C-352/01 Commission v Spain [2002] ECR I-10263, paragraph 8. Factortame, 87 in respect of Member State 85 — See, in particular, Case 77/69 Commission v Belgium liability, and then Bergaderm and Goupil v [19701 ECR 237, paragraph 15, and Case 8/70 Commis- sion v Italy 11970] ECR 9 6 1 , paragraph 9, concerning a Commission, 88 in respect of Community failure to fulfil obligations as a result of parliamentary action. This should be compared with the Court's settled liability. case-law on a national court's duty to interpret its domestic law in a manner consistent with a directive on the ground that 'the Member States' obligation under a directive to achieve the result envisaged by the directive 86 — This was the view of the Cour de cassation (Belgium) in De and their duty under Article 5 of the EC Treaty to take all Keyser, in accordance with the Opinion of Advocate appropriate measures, whether general or particular, to General Velu on that point (journal des tribunaux, 1992, ensure fulfilment of that obligation are binding on all the p. 142). authorities of the Member States, including, for matters within their jurisdiction, the courts' (see Marks & Spencer, 87 — Paragraph 42. paragraph 24. See also Case C-344/98 Masterfoods and 88 — Case C-352/98 P Bergaderm and Goupil v Commission HB [20001 ECR I-11369, paragraph 49). 12000] ECR I-5291, paragraphs 39 to 47.

94. However, we cannot infer that the rules 96. Res judicata pro ventate habetur: a governing Member State liability and the matter adjudicated is held to be true. That rules in respect of the Community must principle of Roman law is recognised by all develop in strict parallel. As Community the Member States 91 and the Community law now stands, the Community cannot be legal order. It means that a judicial rendered liable on account of a decision of decision — by which a dispute has been the Court of Justice, since it is the supreme resolved — cannot be challenged, except court in the Community legal order. It by way of the judicial remedies prescribed would no doubt be different, in particular, by law. It follows that, where all remedies if the European Community, or the Euro- have been exhausted, such a decision (with pean Union, were a signatory to the ECHR legal authority) can no longer be challenged and agreed to be subject to review by the by the commencement of the same type of European Court of Human Rights in proceedings (it thus has the force of res respect of the protection of fundamental judicata). As a number of governments rights in the application of Community have submitted, that principle is based on law. 90 the need to ensure stability in legal relations by avoiding the endless reexamination of disputes. It is thus the result of a dual 89 — See, on that subject, Case C-185/95 P Baustahlgewebe v requirement: legal certainty and the sound Commission [1998] ECR I-8417, and Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, administration of justice. C-250/99 P to C-2J2/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375. 90 — See, on that subject, the Opinion of the Court of 28 March 91 — See Opinion of Advocate General Jacobs in Peterbroeck, 1996 concerning a proposal for accession by the Commu- paragraph 23. That rule is also shared by the Member nity to the European Convention on Human Rights States in the field of criminal law in the form of the non bis (Opinion 2/94 [1996] ECR I-1759, paragraphs 20, 21, in idem principle (see Joined Cases C-187/01 and C-385/01 34 and 35. Gözütok and Brugge [2003] ECR I-1345).

100. Furthermore, and in any event, it should be noted that no Member State is entitled to confer on the principle of res judicata a broader scope in respect of 98. First of all, it should be borne in mind actions for damages on the basis of Com- that, according to settled case-law, '[i]n munity law than in respect of those on the principle, it is for the national courts to basis of national law. ascertain whether the procedural rules intended to ensure that the rights derived by individuals from Community law are safeguarded under national law comply with the principle of equivalence', 92 that is to say, that the rules are not less favour- able than those relating to similar domestic 101. According to the prevailing tradi- claims. The national courts are in the best tional definition, the legal authority of a position to make such an appraisal since it judicial decision — and, as a consequence, requires a relatively detailed knowledge of res judicata — is applicable only in certain national procedural rules. None the less, circumstances, where there is a threefold the Court generally takes the trouble to identity — of subject-matter, legal basis make some observations on that point in and parties — between a dispute already resolved and a subsequent dispute. The legal authority of a decision is thus in 92 — See, in particular, Case C-261/95 Palmisani [1997] ECR I-4025, paragraph 33; Case C-326/96 Levez [1998] ECR I-7835, paragraph 39, and Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 56. 93 — See the case-law cited in footnote 92.

94 — The legal authority of a decision is in principle relative. In French law, see Article 1351 of the Code civil; D. Tomasin, 105. It follows that the principle of res Essai sur l'autorité de la chose jugée en matière civile (including elements of comparative law), Paris, 1975, and Couchez, 'Procédure civile', Armand Colin, 11th ed., judicata cannot preclude the establishment 2000, p. 165. In Spanish law, see A. Oliva Santos, Sobre of an obligation on the part of the Member la cosa juzgada (Civil, contencioso-administrativa y penal, con examen de la jurisprudencia del Tribunal Constitu- States to make good loss or damage caused cional), Editorial Centro de Estudios Ramón Areces, SA, pp. 44 to 57. In German law, see Paragraphs 322 ZPO and 121 VmGo. In Austrian law, see Paragraph 411 ZPO. 'Absolute' legal authority (autorité absolue de la chose jugée) applies generally only to decisions which annul an 95 — The principle of effectiveness means that the procedural act in the context of a review of legality. See, in particular, rules for actions intended to ensure protection of the rights R. Chapus, Droit du contentieux administratif, 2nd ed., which individuals derive from Community law must not be Montchrestien, Paris, 1990, pp. 587 to 600. That rule can framed in such a way as to render impossible in practice or be compared to that applicable in the Community legal excessively difficult the exercise of those rights. order in the context of actions for annulment on the basis 96 — Paragraph 37. of Article 230 EC. 97 — Paragraph 36.

(d) Guarantees of the national courts' 109. That being so, this delicate question is impartiality no doubt not unprecedented for the Member States which have already estab- lished a system of State liability for the acts or omissions of courts, including supreme courts. 107. I accept that it is legitimate to wonder whether the national courts — which would have to hear and adjudicate on actions for damages against the State as a result of a decision of a supreme court — would offer sufficient guarantees of impar- 110. Furthermore, as we shall see below, it- is not for the Court to adjudicate on the determination of which courts have juris- 98 — That conclusion is not contrary to the Court's finding in diction in the matter, since that question Case C-126/97 Eco Swiss [1999] ECR I-3055, paragraphs falls, as a matter of privilege, within the 43 to 48. In that case, the domestic procedural rules at issue restricted the possibility of applying for annulment of sphere of Member State autonomy. an arbitration award whose validity was challenged on the basis of Article 85 EC, that award proceeding upon an interim arbitration award which had acquired the force of res judicata since no application for annulment had been made in respect thereof within a certain time-limit. 99 — This requirement of judicial impartiality is also an element Although the Court recognised that procedural rule, on of the Charter of Fundamental Rights of the European the basis of the principles governing the national judicial Union (Article 47). system, such as the principle of legal certainty and acceptance of res judicata, which is an expression of that 100 — See, in particular, Piersak of 1 October 1982 (Series A, principle, it cannot be concluded from that that the same No 11, paragraph 31); De Cubber of 26 October 1984 should be true in an action for damages, because neither its (Series A, N o 86); Hauschildt of 24 May 1989 (Series A, purpose nor necessarily its effect is to reverse, vary or set No 154, paragraph 46), or McGonnell of 8 February aside a judicial decision. 2000 (Series A, N o 2112). See, on that subject, my Opinion in Baustahlgewebe v Commission, point 67.

112. In such circumstances, the role which the Court would be invited to assume — as an international court independent of the national courts — could be compared to that of the European Court of Human VI — The substantive conditions determin- Rights in the examination of individual ing imposition of State liability for breach complaints. However, it would be excessive of Community law by a supreme court to infer that such a situation would lead to the establishment of a final remedy, that is to make the Court a final court of appeal. It is not a question of making a reference for a preliminary ruling automatic, but rather of pointing out that such a reference is poss- ible. I do not regard this type of reference as 115. Before making any remarks about the anything other than the expression of a present case, it is important to outline the mechanism of judicial cooperation founded general characteristics of the rules govern- on the logic of dialogue and mutual trust ing State liability for the acts or omissions between courts. of a supreme court. I - 10274

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A — Observations of the parties Community law. Such a breach includes, in particular, the case of a breach of the obligation to make a reference for a preliminary ruling.

116. The parties which have taken a pos- ition on this point have argued in favour of rules governing liability which are specific, restrictive and limited to exceptional, or very exceptional, cases.

B — Analysis

117. According to the German Govern- ment, State liability is dependent on the 120. At this point, one question comes supreme court's decision being objectively immediately to mind: is the definition of indefensible and the result of an intentional the substantive conditions determining breach of Community law. such liability a matter of national law or Community law?

122. It is thus necessary to examine the minimum 'Community' conditions to be satisfied if the State is to be rendered liable for the acts or omissions of its supreme courts. Is it enough purely and simply to 1. The nature of the rule infringed transpose the conditions which have been laid down by the Court in respect of the legislature or the administrative auth- orities? In my view, the answer to that question must be no, because of the specific nature of the judicial function. None the 124. It is commonly acknowledged that the less, it is important to maintain a certain requirement that the rule infringed must be coherence with the systems of rules which intended to confer rights on individuals have been defined for those other two State does not necessarily mean that the rule organs and which have been applied on concerned must be directly effective. It is several occasions. sufficient for that rule to entail the grant of rights to individuals and for the content of those rights to be identifiable with suffi- cient precision (on the basis of the provi- sions of the rule in question). 105 The direct effect of the legal rule at issue is not 123. According to an expression which has necessary, but sufficient to fulfil that become customary, the Court has laid requirement. In my opinion, that require- down a principle that 'Community law ment in respect of State liability for the acts confers a right to reparation where three or omissions of the legislature or the conditions are met: the rule of law administrative authorities is transposable infringed must be intended to confer rights to liability for the acts or omissions of on individuals; the breach must be suffi- supreme courts. ciently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the 103 — See Brasserie du pêcheur and Factortame, paragraph 51. 104 — Ibidem, paragraphs 66 and 74. 105 — See, in particular, Francovich and Others (paragraphs 40 and 44); Dillenkofer and Others (paragraphs 33 to 46), and Case C-140/97 Rechberger and Others [1999] ECR 102 — Point 50. I-3499, paragraphs 22 and 23.

127. Furthermore, that condition that the legal rule infringed must be higher-ranking, which was laid down by the Court a 2. The nature of the breach of Community number of years ago in respect of the law non-contractual liability of the Commu- nity, has been recently abandoned by means of Bergaderm and Goupil v Com- mission, so that we can now speak of an alignment of the two systems of liability 130. It follows from Francovich and (Community and Member States). 107 Others that 'although Community law imposes State liability, the conditions under which that liability gives rise to a right to reparation depend on the nature of the breach of Community law giving rise to the loss and damage'. 109 128. Finally, having regard to that aim of coherence between the systems of rules governing liability, it would be at least curious to introduce such a requirement now. Just as '[t]he protection of the rights 131. That condition relating to the nature which individuals derive from Community of the breach at issue was clarified by the Court in Brasserie du pêcheur and Fac-

106 — See, to that effect. Opinion of Advocate General Tesauro in Brasscnc du pécheur and Factortame, points 7 ! and 72. 108 — See Brasserie du pêcheur and Factortame, paragraph 42. 107 — Paragraph 42. 109 — Paragraph .18.

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tortame. Extending its case-law on the 133. Second, where a Member State takes conditions for the non-contractual liability action in a field in which it has a broad of the Community for its legislative activ- discretion, it can incur liability only in case ity, the Court drew a distinction between of a sufficiently serious breach, that is, the following two situations. where, in the exercise of its legislative function, it has manifestly and gravely disregarded the limits on the exercise of its powers. 114

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not. On the other hand, it is important to determine whether the factors adopted by the Court in order to evaluate whether there is a sufficiently serious breach of Community law, for which the legislature 115 — Hain, paragraph 4 1 . The dispute in the main proceedings arose between a dental practitioner and a German or the administrative authorities are association of dental practitioners of social security responsible, can be totally or partially schemes as a result of that association's refusal to enrol him on the register of dental practitioners so that he could transposed to the case of a breach for then be eligible for appointment as a dental practitioner under a social security scheme. Mr Haim brought an which a supreme court is responsible. action for the liability of the State for the acts of the administrative authorities i n order to obtain compen- sation for the loss of earnings which he claimed to have unlawfully suffered. The Court did not state whether this case fell within the first or second situation outlined in Brasserie du pêcheur and Factortame. It left the national court to decide that point, its being made clear that the existence and scope of the discretion of the Member State concerned must be determined by reference to Commu- nity law and not by reference to national law (paragraph 139. In my opinion, the decisive factor is

In those two judgments, the Court stated that the Member State concerned did not have a legislative choice. It was thus indeed a case of the first situation outlined in 119 — Paragraph 56. Brasserie du pécheur and Factortame. 120 — Paragraph 39. 118 — Haim, paragraph 4 3 . 121 — Paragraph 4 1 .

140. Accordingly, the State can be rendered liable, for example, where a supreme court gives a decision contrary to provisions of Community law although their meaning and scope are clear. That would be the case where the wording of the provisions in 142. By contrast, the State cannot be question was clear and precise in every rendered liable on the basis of a decision respect and unambiguous, so that it ulti- of a supreme court which is contrary to a mately leaves no room for interpretation, judgment of the Court which was delivered but only straightforward application. after the national decision, when that decision was consistent with the Court's case-law as it stood at that date, a fortiori where there was every reason to believe that the Court's case-law was stable. In such a case, if there is an error, the supreme court cannot be criticised for having failed to fulfil any of its obligations, because it rightly decided on the basis of the case-law as it stood at the time of its decision. In my 141. The State can also be rendered liable, opinion, that analysis is not incompatible for example, where a supreme court gives a with the temporal effects of preliminary decision which manifestly infringes the rulings on interpretation. Court's case-law, as it stands on the day when the judgment at issue is delivered. The judgments of the Court, in particular 123 — A national court may or must refer a question for a preliminary rulings, are necessarily binding preliminary ruling, even if it has already referred one in on the national courts as to the interpre- connection with the same dispute. That possibility was made clear by Milch-, Fett- und Eierkontor, paragraph 3. tation of provisions of Community law. 122 The Court stated that a further reference for a pre- liminary ruling can be justified 'when the national court The national courts cannot disregard the encounters difficulties in understanding or applying the judgment, when it refers a fresh question of law to the case-law of the Court. They are entitled Court, or again when it submits new considerations only to refer a question for a preliminary which might lead the Court to give a different answer to a question submitted earlier' (see Pretore di Salò, para- ruling in order to obtain useful guidance in graph 12, and the order in Case 69/85 Wünsche [1986] ECR 947, paragraph 15). That mechanism has been used on several occasions by the national courts. See, in particular, Case 8/78 Milac [1978] ECR 1721; Case 244/80 Foglia [1981] ECR 3045; Joined Cases C-134/91 122 — See, in particular, Case 29/68 Milch-, Fett- und Eierkon- and C-135/91 Kerafina — Keramische und Finanz- tor [1969] ECR 165, paragraph 3, and Case 52/76 Holding and Vioktimatiki [1992] ECR I-5699, and Benedetti [1977] ECR 163, paragraph 26. Denkavit and Others.

144. Finally, in my opinion, State liability cannot be prima facie precluded in the case 147. Furthermore, the obligation to make a of a supreme court's manifest disregard for reference for a preliminary ruling tends to its obligation to make a reference for a form part of the analysis of the 'right to preliminary ruling where, for example, challenge a measure before the courts' (or the 'right to obtain a judicial deter- mination'). According to the settled case- 124 — See, in particular. Case 61/79 Denkavit ilaitana [1980] law of the European Court of Human ECR 1205, paragraph 16; Joined Cases C-367/93 to C-377/93 Roders and Others [1995] ECR I-2229, para- Rights, although '[t]he right to have a graph 42; Joined Cases C-197/94 and C-252/94 Bamma preliminary question referred to... the and Société française maritime 11996] ECR I-505, para- graph 47, and Case C-231/96 Edis [1998] ECR I-4951, paragraph 15. 125 — It is indeed in the interest of legal certainty that the Court has acknowledged certain limits to the temporal effects of 126 — In 1975, in its suggestions on the European Union, the its judgments, relating to reasonable limitation periods Court expressed the view that it would be timely to for bringing proceedings (see Edis, paragraph 20, and the provide — in the Treaty — for an appropriate guaran- case-law to which it refers). It is interesting to note that in tee to protect the rights of individuals in the event of a that case Advocate General Ruiz-Jarabo Colomer pointed breach of Article 177 of the EC Treaty (now Article 234 out, in point 24 of his Opinion, that the Court's EC!. However, it left open the question whether that 'judgments... arc not endowed with a kind of supra- guarantee should he an appeal before the Court by the temporal effect'. He stated that '[o]n the contrary, their parties to the main proceedings, mandatory proceedings effects must apply to those legal situations which, under for failure to fulfil an obligation or an action for domestic law, arc still open to challenge or review and reparation against the State concerned at the request of which, accordingly, may b e the subject of a decision of a the injured party (EC Bulletin, Supplement 9/75, p. IS). judicial authority'. 127 — Paragraphs 13 to 17.

149. However, in such circumstances there is a risk, in putting in issue State liability, of 151. The same will probably not be true of encountering certain difficulties in adduc- material damage. Proof of the causal link between such damage and breach of the obligation to make a reference requires that 128 — See, in particular, decisions of 23 March 1999 on the admissibility of the application in André Desmois v the individual claiming to be injured estab- France (No 41358/98, paragraph 2); of 25 January 2000 lish that the decision of the supreme court in Peter Moosbrugger v Austria (No 44861/98, para- would have upheld his claims if it had in graph 2), and judgment on the merits of 22 June 2000 in Coëme and Others v Belgium (Nos 32492/96, 32547/96, fact referred a question for a preliminary 33209/96 and 33210/96, paragraph 114), and decisions of 4 October 2001 on admissibility in Nicolas Caiena ruling. Unless the Court delivers a judg- Santiago v Spain (No 60350/00) and of 13 June 2002, on ment on the point of law in question soon the admissibility of the application in Lambert Bakker v Austria (No 43454/98, paragraph 2). In all those cases, the European Court or Human Rights held that the absence of a reference for a preliminary ruling was not vitiated by arbitrariness. 130 — See, on that subject, the case-law of the European Court 129 — The German Constitutional Court considers that the of Human Rights in connection with the examination of Court of Justice is a 'legally appointed judge' of the individual complaints based on breach of Article 6 of the parties for the purpose of Article 101 of the German ECHR (in particular Coëme v Belgium, cited above, Constitution. It follows that, where a supreme court does paragraphs 155 to 158). According to the European not make a reference for a preliminary ruling, in breach Court of Human Rights, it is not possible to speculate on of Article 234(3) EC, the Constitutional Court has what would have been the outcome of proceedings in jurisdiction to quash such a judgment on the ground of conformity with Article 6 of that convention and thus to breach of the Constitution. See, for example, the order of allow a claim for reparation of material damage. By 9 January 2001 of the Bundesverfassungsgericht (Federal contrast, taking account of the seriousness of the non- Constitutional Court) concerning a decision of the material damage sustained, it accepts that the mere Bundesverwaltungsgericht (Federal Administrative finding of breach of the abovementioned provisions is Court) on equality for men and women in the medical insufficient and justifies the award of a certain sum by profession (BvR 1036/99). way of reparation.

154. I take the view, in this context, that it is neither necessary nor appropriate to pay particular attention to factors such as the position of the Community institutions or 3. The direct causal link between the whether the breach of Community law was breach of the obligation resting on the intentional or involuntary. State and the damage sustained by the injured parties

155. As regards the position of the Com- 157. This aspect has already been tackled munity institutions (at least that of the in respect of breach of the obligation to

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OPINION OF MR LÉGER — CASE C-224/01

make a reference for a preliminary ruling. It national court and the Court of Justice in is sufficient for there to be a direct causal assessing the merits of an action for dam- link between the breach concerned and ages brought against the State on the basis actual and certain damage of a pecuniary of its liability for the acts or omissions of a or non-material kind. supreme court.

131 —That principle was laid down in Case 179/84 Bozzetti 159. This point concerns both the deter- [1985] ECR 2301, paragraph 17, referring on that point to Salgoil (particularly p. 675). It was confirmed, in mination of the competent national court particular, in Case C-446/93 SEIM [1996] ECR I-73, paragraph 32, and Dorsch Consult (cited by the referring or tribunal and the respective roles of the court).

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the Court to involve itself in the resolution how to characterise the breaches of Com- of questions of jurisdiction... in the national munity law at issue'. 133 Nevertheless, it judicial system'. 132 held that it would be 'helpful to indicate a number of circumstances which the n a t i o n a l c o u r t s might t a k e i n t o account'. 134 That case-law has been con- firmed on several occasions. 135 It is fully applicable in the case of an action putting 162. In response to the referring court's in issue State liability for breach of Com- question on this point, it is important to munity law by a supreme court. I will state that that principle of institutional therefore do no more than make a few autonomy, subject to the reservation that observations on the present case. effective judicial protection be ensured, is also applicable to any actions for damages brought by individuals against the Member States on the basis of their liability for the acts or omissions of a supreme court.

VIII— The present case

movement for workers. That freedom is to ity but also all covert forms of discrimi- entail in particular, in the words of nation which, by the application of other Article 48(2), the abolition of any discrimi- criteria of differentiation, lead in fact to the nation based on nationality between same result. 139 In O Flynn, the Court workers of the Member States as regards stated that 'conditions imposed by national employment, remuneration and other con- law must be regarded as indirectly dis- ditions of work and employment. Those criminatory where, although applicable Treaty rules were implemented and ampli- irrespective of nationality, they affect fied by Regulation No 1612/68. essentially migrant workers... or the great majority of those affected are migrant workers..., where they are indistinctly applicable but can more easily be satisfied by national workers than by migrant workers... or where there is a risk that they may operate to the particular detriment of 167. Furthermore, it should be stated that migrant workers'. 140 the Court has held that the principle of n o n - d i s c r i m i n a t i o n , laid down in Article 39(2) EC and implemented by Regulation No 1612/68, applies to '[a]ny Community national, irrespective of his place of residence and his nationality, who has exercised the right to freedom of movement for workers and has been employed in another Member State'. 137 As a consequence, according to the Court, the fact that an individual who relies on the principle of non-discrimination is a 169. In the light of this case-law, that is national of the Member State in question, manifestly true of the condition for grant- and not of another Member State, has no ing the special length-of-service increment bearing on the application of such a depending on completion of 15 years' principle. 138 According to that case-law, service as a professor at — exclusively — Mr Köbler was therefore entitled to rely on Austrian universities. It must be stated that the principle of non-discrimination against there is a risk that that condition may workers, laid down by Article 39(2) EC. operate to the particular detriment of migrant workers, that is to the detriment of workers who have exercised their right to freedom of movement. That is true of those who, like Mr Köbler, have left their Member State of origin and gone to work in another Member State and then return to 168. Furthermore, according to settled the first State to pursue their career. case-law, that principle prohibits not only overt discrimination by reason of national- 139 — See, in particular, Case 152/73 Sotgiu [1974] ECR 153, paragraph 11; Case C-27/91 Le Manoir [1991] ECR I-5531, paragraph 10; Case C-111/91 Commission v 137 —See Case C-443/93 Vougioukas [1995] ECR I-4033, Luxembourg [1993] ECR I-817, paragraph 9; Scholz, paragraphs 38 to 42. See also Case C-419/92 Scholz paragraph 7, and Case C-237/94 O'Flynn [1996] ECR [1994] ECR I-505, paragraph 9. I-2617, paragraph 17. 138 — Scholz, paragraph 8. 140 — Paragraph 18.

171. Even if that purported justification were applicable in the present case, on the ground that Austrian universities are covered by one employer, unlike in Schön- 173. Furthermore, that supreme court ing-Kougebetopoulou, the supreme court should have maintained the question it should have checked whether the length- had referred for a preliminary ruling, even of-service condition in question was pro- if that meant supplementing it in order to portionate to such an objective. I would obtain some clarification on the scope of point out that the Court has frequently Scbönmg-Kougebetopotilou. If we apply stressed that general requirement of pro- the rule in CILFIT and Others, it is difficult portionality. 141 It was also careful to point to consider that the supreme court was in it out in paragraph 21 of the ruling in fact convinced, first, that the appli- Schöning-Kongebetopoulou, which it for- cation — even if correct — of Commu- warded to the supreme court in response to nity law was so obvious as to leave no its order for reference, even though, in that scope for any reasonable doubt as to the case, the Court held that the purported manner in which the point of law raised justification based on reward of an was to be resolved and, second, that the employee's loyalty to a particular employer matter was equally obvious to the courts of was not material. In that case, it was the other Member States and to the Court therefore not necessary, in order to resolve of Justice. 144 the dispute in the main proceedings, to assess the proportionality between the length-of-service condition at issue and such a justification. 142 143 — Moreover, that is what the Court held subsequently in respect of Austrian legislation which was less restrictive of freedom of movement for persons. Under that legis- lation previous periods of employment spent in other Member States arc taken into account in determining the pay of teachers, but under stricter conditions than those 141 — Sec, in particular, Joined Cases C-259/91, C-331/9] and applicable to periods spent i n Austria. After rejecting the C-332/91 Allué and Others [1993] ECR I-4309, para- alleged justification based on the reward of loyalty, given graph 15; O'Flynn, paragraph 19, and the judgment of the large number of employers, the Court was careful to 12 March 1998 — delivered a few months before the state that, in any event, the discriminatory restriction at Verwaltungsgerichtshof gave its decision — in Case issue was not proportionate to such an objective (see Case C-187/96 Commission v Greece [1998] ECR I-1095, C-195/98 Österreichischer Gewerkschaftsbund [2000] paragraph 19. ECR I-10497, paragraph 50). 142 — See Schöning-Kougebetopoulou, paragraphs 26 and 27. 144 — CILFIT and Others, paragraph 16.

(2) Where a supreme court is responsible for a breach of Community law by a Member State, injured individuals have a right to redress if the purpose of the rule of Community law infringed is to confer rights on them, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the individuals. Subject to that reservation, the State must make reparation in accordance with the domestic rules on

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liability for the consequences of the loss or damage caused by the breach of Community law attributable to the State, provided that the conditions laid down by national law are neither less favourable than those relating to similar domestic claims nor such as to make it in practice impossible or excessively difficult to obtain redress.

(3) The principle that it is for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from Community law, subject to the reservation that effective judicial protection be ensured, is applicable to actions for damages brought by individuals against a Member State on the basis of an alleged breach of Community law by a supreme court.

(4) The national courts have sole jurisdiction to assess whether the substantive conditions for imposing State liability for the acts or omissions of a supreme court are fulfilled, in particular to determine whether the error of law which is the cause of the breach of Community law in question is excusable or inexcusable. In that assessment, they may take account of the observations made by the Court in that regard.